Exploring A Father’s Rights

Written by Laura Sands and Fact Checked by The Law Dictionary Staff  

A father’s rights generally pertain to matters regarding child custody, access to visitation, and a father being allowed to make decisions about the well-being of his biological child. While some may assume these rights are immediately recognized and protected by law, the actual rights of an individual father are not always so clearly defined. Historically, the rights of men with children have been viewed by the courts as being significantly different from the legal rights bestowed upon a mother. This is particularly true in cases of unwed fathers since one’s marital status weighs heavily in decisions about child support, custody, visitation, and adoption. Whereas a once married and now divorced father’s rights are generally decided during the process of dissolving a marriage, an unmarried father’s path to obtaining his rights as a parent can be quite different.

What is a Father?

Before exploring the rights that any father may have with regards to his children, it helps to first understand how fatherhood is legally defined. According to the U.S.Supreme Court, biology is one factor used to establishing who is and who isn’t a father. It is not, however, the only factor in defining who a father is or in establishing a father’s rights under the law. The Supreme Court maintains that protection of rights equal to that of a mother must only be granted when it can be proven that a biological father has also consistently participated as a parent in the child’s life.

So, even when a biological link between a father and child has been established, in the absence of proving that a father’s dependable and ongoing care for a child already exists, individual states are still able to apply their own discretion in determining an unwed dad’s rights with regards to such issues as:

  • Preventing a third-party adoption
  • Preventing a step-parent adoption
  • Sharing custody of a child
  • Being allowed visitation with a child

Depending upon the jurisdiction, it is possible a man may prove himself as a biological parent, but if he cannot prove he has played a consistent parenting role he may not have any claim to the above-stated rights.

Father’s Rights Movement

Due to claims of biases against men and against unmarried fathers within the family court system, the Father’s Rights Movement was born in the 1960s and has gained considerable momentum since the 1970s. Proponents of the movement have advocated for divorced and unmarried fathers to be awarded equal parental rights such as:

  • The right to claim paternity even when not married to the child’s mother
  • The right to prevent a child from being adopted by a third-party
  • The right to share joint custody with a child’s mother
  • The right to make joint decisions with a mother about a child’s welfare
  • The right to maintain a steady relationship with a child despite living separately from the mother and child

While activists have been somewhat successful in advocating for these rights, unmarried fathers still must meet an individual state court’s requirements before rights are granted.

Divorced vs. Unmarried Fathers

During the course of divorce proceedings, a child’s father typically does not have to prove paternity. This is because, unless otherwise stated, the marital relationship leads the court to believe he is the natural father. While a divorce is being decided, rights with regards to custody, child support, and visitation are also given consideration along with decisions about the division of a couple’s assets and other financial ties.

With no marriage to dissolve or rely upon as evidence of fatherhood, an unmarried father must first prove himself to be a biological father and an active participant in the parenting process before he can assert any rights as a legal parent.

Fathers and the Right to Family Leave

Through the Family and Medical Leave Act (FMLA), federal law allows mothers and fathers unpaid time off from work to care for close family members, including newborn children or newly adopted children. Both parents are allowed 12 weeks within the first year that a child enters the family with California, New Jersey, New York, Rhode Island, Washington, and the District of Columbia offering Paid Family Leave (PFL) at a reduced wage for six of those weeks.

While a married father’s rights to family leave are rarely challenged, an unmarried father may be required to prove he is a birth father before an employer allows time off under the FMLA. In some states, if a married father and his wife work for the same employer, a private employer has the option of requiring a couple to share the same 12 weeks, whereas unmarried couples who work for the same employer are allowed to each take separate 12-week leaves. Largely dependent on an employer’s discretion, this is one of the few examples where unwed fathers may be granted full access to a right that married fathers may not be allowed to enjoy.

Father’s Rights Before Birth

A woman and a man may privately agree upon a decision to either abort a pregnancy or have a child together, but the legal decision to do either is completely up to the woman. A man cannot force a woman to carry a pregnancy to term, nor can he legally force her to abort a pregnancy. Because decisions regarding pregnancy are left up to a woman, advocates for father’s rights continue to argue that a man who impregnates a woman should be able to opt out of the financial responsibilities of fatherhood should he not want the child to be born or should he not wish to play any role in the child’s life. In most cases, however, a biological father is still held financially responsible for a child even if he never has any involvement in a child’s life.

Father’s Rights in Adoption Matters

In recent decades, advocates for father’s rights have made significant progress in persuading courts to judge mothers and fathers as equal parents under the law. Prior to the 1972 Stanley v. Illinois Supreme Court ruling, an unwed father was not given any special consideration in taking custody of his children after a mother’s death. While he could legally adopt his own children, he would be treated with the same regard as any stranger applying to adopt his children.

Today, fathers do have a right to block third-party adoptions, keep children out of foster care when a mother dies or is deemed unfit, and accept custody over their own children as long as biology plus competent parenting can be satisfactorily proven to the courts.

Putative Father Registries

A “putative father” is the term used to describe an unmarried father who is assumed to be a child’s true, biological parent even where legal paternity has not been established. The following states maintain a database which allows fathers to voluntarily register themselves as a child’s father for legal purposes:

  • Wyoming
  • Virginia
  • Utah
  • Teas
  • Tennessee
  • Oklahoma
  • Ohio
  • New York
  • New Mexico
  • New Hampshire
  • Nebraska
  • Montana
  • Missouri
  • Minnesota
  • Louisiana
  • Iowa
  • Indiana
  • Illinois
  • Georgia
  • Florida
  • Delaware
  • Arkansas
  • Arizona
  • Alabama

Several states which do not maintain a putative father registry, offer forms stating fatherhood which can be filled out by a dad and filed with such government agencies as a registrar’s office or a department of social services. These filings allow men to identify themselves as a parent for the purposes of helping to establish a father’s rights to shared custody, decision-making on the child’s behalf, visitation, and more.

When Help is Needed

Since a father’s rights may not be immediately apparent, an attorney specializing in family law is often necessary when a father is petitioning a court in an attempt to exercise his rights. While the Supreme Court and lay advocates have been instrumental in creating more equitable laws pertaining to married and unmarried parents, much is still left up to individual state courts when it comes to deciding who qualifies as a father and what authority he may have in a child’s life. Custody and visitation proceedings can become quite complicated, as can those of an unwed father in preventing an outside adoption or keeping children out of foster care. With a child’s livelihood and a family’s involvement hanging in the balance, father’s hoping to fully assert their rights in court may want to seek qualified legal counsel to help with that process.

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